On Tuesday, the Louisiana Supreme Court tersely declared that the state must recognize the out-of-state marriage of two lesbians and recognize both women as the mothers of their son. In a brief opinion, the court simply noted that Obergefell v. Hodges, the Supreme Court’s recent decision declaring marriage to be a fundamental right for same-sex couples, “compels [this] conclusion.”
Justice Jeanette Theriot Knoll concurred, “because I am constrained to follow the rule of law set forth by a majority of the nine lawyers appointed to the United States Supreme Court.” But she went down swinging, writing separately “to express my views concerning the horrific impact these five lawyers have made on the democratic rights of the American people to define marriage.” The justices’ decision, she wrote, was “a complete and unnecessary insult to the people of Louisiana”:
Unilaterally, these five lawyers took for themselves a question the Constitution expressly leaves to the people and about which the people have been in open debate—the true democratic process. This is not a constitutionally-mandated decision, but a super-legislative imposition of the majority’s will over the solemn expression of the people evidenced in their state constitutional definitions of marriage.
Knoll then openly contradicts the court’s ruling in Obergefell:
[T]he five unelected judges’ declaration that the right to marry whomever one chooses is a fundamental right is a mockery of those rights explicitly enumerated in our Bill of Rights. Simply stated, it is a legal fiction imposed upon the entirety of this nation because these five people think it should be. No one contests the historical definition of marriage as a union of a man and a woman or its social necessity to protect the product of their physical union, i.e., children. While I have many friends in same-sex relationships, I respectfully would not bestow upon them legal rights of marriage as having a child of their physical union is literally impossible.
And, in a melancholy peroration, accused the Obergefell majority of more or less destroying American democracy:
It is a sad day in America when five lawyers beholden to none and appointed for life can rob the people of their democratic process, forcing so-called civil liberties regarding who can marry on all Americans when the issue was decided by the states as solemn expressions of the will of the people. I wholeheartedly disagree and find that, rather than a triumph of constitutionalism, the opinion of these five lawyers is an utter travesty as is my constrained adherence to their “law of the land” enacted not by the will of the American people but by five judicial activists.
Not content with Knoll’s fiery concurrence, Justice Jefferson Hughes III dissented, arguing that the Louisiana Supreme Court should essentially defy the Supreme Court:
Judges instruct jurors every week not to surrender their honest convictions merely to reach agreement. I cannot do so now, and respectfully dissent. Marriage is not only for the parties. Its purpose is to provide children with a safe and stable environment in which to grow. It is the epitome of civilization. Its definition cannot be changed by legalisms.
Hughes also wrote that “the adoption by same sex partners of a young child of the same sex” is “troubling.”
All in all, Knoll’s and Hughes’ tantrums are a pretty impressive display of judicial insolence. But they don’t hold a candle to the Alabama Supreme Court’s March meltdown, when the justices issued a 148-page opinion purporting to overrule a federal judge—and, to some degree, the Supreme Court itself. (For the record, the Constitution says they can’t do that.) The Louisiana hissy fit can’t match that level of impertinent subversion. But give Knoll and Hughes time. At this rate, they’ll get there soon.
Want to hang out with Outward? If you’ll be in or near New York City on Monday, July 13, join June Thomas, J. Bryan Lowder, and Mark Joseph Stern—and special guests Ted Allen, of Queer Eye and Chopped fame, and marriage-equality campaigner extraordinaire Evan Wolfson—for a queer kiki at an Outward LIVE show, hosted by City Winery. Details and tickets can be found here.
